Smith v Smith (Ken.W.Dist 1997) Civil Action No. 1:97-CV-7S(R) 16 International Abduction [USA 1997] =========================================================== UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION Civil Action No. 1:97-CV-7S(R) RUSSELL JAMES SMITH, PETITIONER. V. CYNTHIA ANN SMITH, RESPONDENT. MEMORANDUM OPINION 001 Petitioner Russell Jaemes Smith seeks the return of his son, Nathan, to Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Convention"). He alleges that Respondent Cynthia Smith, his wife, removed their child from Australia in violation of the Convention by refusing to return the child from a vacation to the United States. For the reasons that follow, the Court finds that Mrs. Smith did wrongfully remove Nathan from his "habitual residence," Australia, in violation of the Convention and orders that Nathan be returned to Australia for custody proceedings. FACTS 002 Petitioner Russell Jaemes Smith, a citizen of Australia, and Respondent Cynthia Ann Smith, a citizen of both the United States and Australia, FN1 were married in Hawaii on March 20, 1987. The couple lived in Australia from the beginning of their marriage and Nathan, their only child, was born there on March 31, 1992. Mr. Smith has been employed in Australia since several years before the marriage. Due to the nature of his employment, Mr. Smith travels frequently and Mrs. Smith has been Nathan's primary caretaker. The parties separated permanently, after a previous separation and attempt at reconciliation, in May 1996. FN2 003 In August 1996, Mr. and Mrs. Smith agreed that Nathan would accompany his mother to the United States for a visit with her parents. This visit was to last approximately one month. See Deposition of Cynthia Ann Smith at 107; Letter from Mrs. Smith's Australian Counsel to Mr. Smith's Former Australian Counsel, Exhibit B to Petitioner's Brief in Support of Petition ("We are further instructed that [Mr. Smith] consents to [Mrs. Smith] taking Nathan to the United States of America for a holiday for one month in October."); Letter from Mr. Smith's Former Australian Counsel to Mrs. Smith's Australian Counsel, Exhibit C to Petitioner's Brief in Support of Petition ("We are instructed ... that Mrs. Smith is to return on 5 October 1996. Mrs. Smith did not resign from her job in Australia prior to this trip. Deposition of Cynthia Ann Smith at 107. Mrs. Smith and Nathan were to meet Mr. Smith in Hawaii on October 5, 1996. However, Mrs. Smith and Nathan never arrived. Mrs. Smith testified that she agreed to meet Mr. Smith in Hawaii but decided not to go after he refused to obtain hotel accommodations for her and Nathan. DISCUSSION 004 The Convention, implemented in the United States as the International Child Abduction Remedies Act, 42 U.S.C.  11601-11610, is designed to deter parental kidnaping across international borders. Feder v. Evans-Feder, 63 F.3d 217, 221 (3rd Cir. 1995). See also 42 U.S.C.  I 1601(a)(1)-(4). Its stated purpose is to "protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access." Convention, Preamble. Both the United States and Australia are signatory nations to the Convention. See Feder, 63 F.3d at 221. 005 Federal courts considering petitions brought under the Convention have stressed two principles embodied in the Convention and it implementing statutes: a court in the abducted-to nation has jurisdiction to decide the merits of an abduction claim, but not the merits of the underlying custody dispute." See Friedrich v. Friedrich ("Friedrich" II), 78 F.3d 1060, 1063) (6th Cir. 1996). Second, the abducted-to nation should "restore the pre-abduction status quo and thereby discourage parents from engaging in forum shopping by crossing international borders. See Id. at 1064. Under the Convention, a child has been subject to a"wrongful removal" when: a. it is a breach of rights of custody attributed to a person, an institution or any other body. either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of agreement having legal effect under the law of that state. Convention, art. 3; Friedrich v. Friedrich ("Friedrich I), 983 F.2d 13396, 1400 (6th Cir. 1993). A petitioner seeking the return of a child to a particular country must show. by a preponderance of the evidence, that the removal was wrongful. If the petitioner is able to meet this burden the respondent must show that one of the exceptions applies. To prove that an exception applies, the respondent must show one of the following: 1. by clear and convincing evidence that there is a grave risk that the return of the child would expose the child to physical or psychological harm. Convention, Art. l3(b); 42 U.S.C.  11603(e)(2)(A). 2. by clear and convincing evidence that the return of the child "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." Convention, Art. 20; 42 U.S.C.  11603(e)(2)(A). 3. by a preponderance of the evidence that the proceeding was commenced more than one year after the abduction and the child has become settled in its new environment. Convention, Art. 12; 42 U.S.C.  11603(e)(2)(B). 4. by a preponderance of the evidence that the petitioner was not actually exercising the custody night at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention. Convention, Art. 13(a); 42 U.S.C.  11603)(e)(2)(B). Friedrich I, 983 F.2d at 1400. 006 Thus, Mr. Smith must prove by a preponderance of the evidence that (1) Mrs. Smith wrongfully removed Nathan from his "habitual residence," and (2) Mr. Smith was exercising his parental custody rights at the time of removal or that he would have exercised his rights absent the removal, under the law of the country of Nathan's habitual residence. Should Mr. Smith meet his burden on these two points, Mrs. Smith has the burden of showing that one of the Convention's exceptions applies. "HABITUAL RESIDENCE" 007 Although the Convention provides little guidance on what is a "habitual residence," the Sixth Circuit has previously visited the issue. In Friedrich I, the Sixth Circuit concluded that there is no meaningful difference between habitual and ordinary residence. Friedrich I, 983 F.2d at 1401; Rydder v. Rydder, 49 F.3d 369, 370) (8th Cir. 1995). A person's "habitual residence" is a matter of geography altered more by the passage of time than it is by any "changes in parental affection and responsibility." Friedrich I, 983 F.2d at 1402. "[T]o determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions." Id. at 1401. 008 For there to be a change in one's "habitual residence" "there must be a degree of settled purpose. . . . All that is necessary is that the purpose of living, where one does has a sufficient degree of continuity to be properly described as settled." Feder, 63 F.3d at 223 (quoting, In re Bates, No. CA 122-89, High Court of Justice, Family Div'n Ct. Royal Courts of Justice, United Kingdom (1989)). However, a child's wrongful removal by one parent does not alter that child's "habitual residence." See Feder, 63 F.3d at 226 (holding parent's unilateral decision to keep child in United States does not to affect his "habitual residence"); Meredith v. Meredith, 759 F. Supp. 1432, 1435 (D. Me. 1991) (holding child's "habitual residence" unchanged by mother's refusal to return child from vacation in France). 009 Based upon the couple's history in Australia and the parties' apparent intention that Nathan be returned to Australia at the end of his trip to the United States, Mr. Smith argues that Australia was Nathan's "habitual residence" at the time of his removal to the United States. Conversely, Mrs. Smith contends that Mr. Smith granted her permission to take Nathan to the United States and, once there, gave consent to his remaining there. Evidence in the record demonstrates that the parties agreed Nathan would be returned to Australia in October 1996. Mrs. Smith never resigned from her job in Australia and the parties' attorneys were in agreement that Nathan and Mrs. Smith would return to Australia after the visit to the United States. Mrs. Smith even concedes that she had Mr. Smith's consent to take Nathan to the United States for a visit, and that she intended to return to Australia at the end of that visit. Deposition of Cynthia Ann Smith at 107. 010 Until the prolonged trip to the United States, Nathan had lived in Australia since birth and his life there was sufficiently "settled" to make Australia his "habitual residence." By keeping Nathan in the United States beyond the date of his scheduled return, Mrs. Smith effected a removal of Nathan from his "habitual residence," but she did not successfully alter his "habitual residence" through her unilateral acts. Prior to Nathan's removal, there was no settled intention for Nathan to remain in the United States. Any continuity or subsequent appearance of settlement in the United States is a result of Nathan's removal from Australia and does not alter his "habitual residence." EXERCISE OF CUSTODY RIGHTS 011 Under the Convention, a child's removal from the country of his"habitual residence" is only "wrongful" if "a person in that country is, or would otherwise be, exercising custody rights to the child under that country's law at the moment of removal." Friedrich II, 78 F.3d at 1064; Convention, Art. 3). Custody rights "may arise in particular ky operation of law or by reason or a judicial or administrative decision, or by reason of an agreement having legal effect under the law of a state." Id. "Exercise" is interpreted liberally and the Sixth Circuit has concluded that "as a general rule, any attempt to maintain a somewhat regular relationship with the child should constitute 'exercise.'" Id. at 1066. 012 Since Australia was Nathan's "habitual residence" prior to his removal, Australian law determines whether Mr. Smith enjoyed custody rights and whether he exercised those rights. In Feder v. Evans-Feder , the Third circuit, presented with the same question. concluded that Australia's Family Law Act of 1975 applied to custody matters in Australia. Under the Convention this Court "may take notice directly [of the provisions of the Act] ... without recourse to specific procedures for the proof of that law." Convention, Art. 14. 013 The Family Law Act provides that each parent is a joint guardian and a joint custodian of a child, each having the right to make decisions about the child's daily care. Feder, 63 F.3d at 225 (citing Family Law Act, 1975,  63(E)(l)-(2), (F)(1) (Austl.)). Joint custody exists until a court orders otherwise. Id. Thus, under Australian law, Smith has joint custody of Nathan unless there a court has ordered otherwise. 014 Mrs. Smith suggests at one point in her deposition that an Australian court issued an order granting her temporary custody over Nathan. See Deposition of Cynthia Ann Smith at 6-78. However, later in her deposition she admitted that there were no court orders granting her sole custody of Nathan when they left Australia in September 1996. See id. at 106-07. Mrs. Smith has also failed to produce any orders granting her sole custody over Nathan despite this Court's order compelling her to turn over such documents. Therefore, the Court can assume that there are no such orders and that the parties have joint custody over Nathan. 015 As noted above, the "exercise" of custody rights is interpreted broadly for purposes of the Convention. Friedrich II, 78 F.3d at 1066. The Sixth Circuit has held: "[I]f a person has valid custody rights to a child under the law of the country of the child's residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." Id. If a parent has exercised his custody rights at all, the court's analysis should end. It is irrelevant whether the parent exercised the custody rights well and delving into such matters is dangerously close to a consideration of the merits of the custody dispute, which is clearly beyond a federal court's jurisdiction. 1d; 42 U.S.C.  11601(b)(4). 016 Although Mr. Smith's job requires him to travel for several days at a time, he claims Chat when he was home he was Nathan's primary caretaker. The parties are in dispute about how often Mr. Smith saw his son after the parties separated, but it is undisputed that Mr. Smith had at least four visits with Nathan between May and September 1996. Mr. Smith currently maintains contact with Nathan over the telephone and has sent him several packages. The record does not indicate a "clear and unequivocal abandonment" of Nathan by Mr. Smith. It appears that he exercised his custody rights up until Nathan's removal from Australia and continues to attempt to exercise those rights telephonically. 017 Mrs. Smith suggests that Mr. Smith was not exercising his custody rights because he merely had visitation rights and not physical custody of Nathan. However, one of the Convention's goals is to protect the "rights of access" of those parents who do not retain physical custody of a child after a separation. "Rights of access" include "the right to take a child for a limited period of time to a place other than the child's habitual residence." Convention, Art. 5. Mr. Smith had joint custody of Nathan under Australian law and even though he did not have physical custody over Nathan, he retained joint custody and exercised his custody rights. EXCEPTIONS 018 Because Mrs. Smith "wrongfully removed" Nathan from Australia Nathan must be returned to Australia unless she can show that one of the exceptions applies. The only exception placed at issue by Mrs. Smith is the first one, that there is a grave risk that the return of the child would expose him to physical or psychological harm. Convention, art. 13b; 42 U.S.C.  11603(e)(2)(A). For this exception to apply, the "grave risk" must be established by clear and convincing evidence. Id. 019 All four exceptions to the Convention are "narrow." Friedrich II, 78 F.3d at 1067. In fact, federal courts have the ability to return a child to his "habitual residence" even if one of the exceptions applies, if such a return would be appropriate. Courts considering, the "grave risk' exception have concluded that it exists only when there is harm "that also amounts to an intolerable situation." Id. (quoting Thomson v. Thomson [1994] D.L.R.4th 253 (Canadian case)). The harm required is "something greater than would normally be expected on taking a child away from one parent and passing him to another." Id. (quoting In re A, 1 F.L.R. 365, 372 (Eng. C.A. 1988)). The Sixth Circuit has concluded that a grave risk of harm exists in only two situations: First there is a gave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute, e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. Id. at 1069. There is no allegation that returning Nathan to Australia would put him at risk of war, famine, or disease, therefore, the only question remaining is whether Mrs. Smith has shown, by clear and convincing evidence, that such a return would expose him to serious abuse or neglect and that Australia would be unwilling to give him adequate protection. 020 Mrs. Smith points her allegations of verbal and physical abuse at the hands of Mr. Smith as evidence that Nathan would be placed in grave risk of serious harm if returned to Australia. She specifically notes an incident in May of 1996 in which she suffered severe injuries in an altercation with her husband. Although the conduct alleged, if true, is inexcusable, it was directed toward Mrs. Smith, not Nathan. There is no allegation that Mr. Smith ever abused Nathan and these allegations, even if accepted as true, do not prove by clear and convincing evidence that Nathan's return to Australia would place him at grave risk of serious harm. See Nunes-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995). Moreover, Mrs. Smith does not argue that the Australian courts are unable or unwilling to adequately protect Nathan. In fact, Australian courts have demonstrated their willingness to protect Nathan, as well as Mrs. Smith, by issuing a domestic violence protection order in the past. ATTORNEYS FEES 021 The legislation implementing the Convention provides for the assessment of fees and costs against the respondent in a petition brought under the Convention. The statute provides: Any court ordering the return of a child pursuant to an action brought under section 4 [42 U.S.C.  11603] shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 42 U.S.C.  11607(3). See also Rydder, 49 F.3d at 373-74. Mr. Smith has requested that his attorney's fees be reimbursed in accordance with the statute. Therefore, the Court shall consider an award of reasonable attorney's fees and costs upon the submission of records documenting his costs within 10 days of entry of this decision. Mrs. Smith shall have 10 days to respond and demonstrate why such an award would be "clearly inappropriate." An appropriate order shall issue. /s/ Thomas B. Russell ___________________________ Thomas B. Russell, Judge United States District Court =========================================================== UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION Civil Action No. 1:97-CV-7S(R) RUSSELL JAMES SMITH, PETITIONER. V. CYNTHIA ANN SMITH, RESPONDENT. ORDER 022 A petition having been filed pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, implemented in the United States as the International Child Abduction Remedies Act, 42 U.S.C.  11601-11610, and the Court being sufficiently advised, 023 IT IS ORDERED: The petition is GRANTED. The parties shall make arrangements for Nathan Smith to be returned to Australia for custody proceedings. 024 IT IS FURTHER ORDERED: Petitioner shall submit his request for attorney's fees with documentation within 10 day of the entry of this Order. Respondent shall have 10 days to respond. Copies of these pleadings shall be sent to the Judge's Chambers in Paducah. This is a final and appealable order. There is no just cause for delay. This the 10th day of December, 1997. /s/ Thomas B Russell __________________________ Thomas B. Russell, Judge United States District Court cc: Counsel =========================================================== 24 May 1998. Note by William M. Hilton. A review of the CIVIL DOCKET FOR CASE #: 97-CV-78 shows the following: 30 Jan 1998 NOTICE OF APPEAL by respondent Cynthia Ann Smith to decision [39-2], [42-1] (cc: all counsel) receipt # 005008 (lw) [Entry date 02/04/98]. 22 May 98 ORDER by Judge Joseph H. McKinley Jr. granting motion for order executing judgment [71-1] stay lifted; parties shall make immediate arrangements for Nathan to be returned to Australia for custody proceedings; within 7 days counsel shall communicate with one another to formulate a plan for accomplishing the return of Nathan to Australia; within 15 days counsel shall file a joint report and an agreed order, or in the absence of an agreement, separate orders accomplishing the transfer of Nathan to Australia (cc: all counsel) (ll). -------------------- 1. Respondent was born in the United States but acquired dual citizenship after her marriage to Petitioner. 2. Although not relevant to the outcome of this case, there is some dispute over whether the couple reconciled again in August 1996. Mr. Smith claims that they did, but Mrs. Smith denies that any such reconciliation took place.